Bill Nemitz: Poliquin faces uphill battle for House seat

Oh, the irony. As Maine Republicans huff and puff about a constitutional court fight should ranked-choice voting pull the seat out from under Rep. Bruce Poliquin this week, they’re overlooking the one document that will likely land Democratic challenger Jared Golden on Capitol Hill come early January.

It’s called The Constitution of the United States.

It’s right there in Article 1, Section 5, of the document so near and dear to guys like Poliquin and lame-duck Gov. Paul LePage. Referring to the two chambers of Congress, it says, “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members.”

Meaning, when it’s all said and done, it won’t be up to the courts to decide whether Maine’s ranked-choice voting law – used for the first time nationally Tuesday in a federal election – is a legitimate way to elect a congressman.

It will be up to the U.S. House of Representatives. The same House that will be controlled by Democrats when the 116th Congress swears in its members – and thus determines its own membership – on Jan. 3, 2019.

“The Constitution, on this point, really couldn’t be any more clear. There’s lots of points where it’s not clear, but in this one, it is,” said Mark Brewer, a professor of political science at the University of Maine.

Brewer mused that the current Republican-controlled House, were Golden to win, could conceivably try to interfere with the outcome and declare Poliquin the winner. Were that to happen, however, presumably nothing would prevent the next House from going ahead and seating Golden, anyway.

That said, Brewer noted that “at the end of the day, the House of Representatives has the final say on who it chooses to seat or not seat.”

Someone should tell that to LePage. In a Thursday morning radio interview with WGAN, the soon-to-be-former governor demonstrated the difference between bloviating about the Constitution and actually reading it.

Asked what his advice would be should the ranked-choice counting now underway eliminate Poliquin’s current small lead and hand the election to Golden, LePage didn’t hesitate.

“If it does, I would say go to the courts and you’ll win this,” he replied. “I think this is a court battle and you go. Our Constitution’s very clear.”

That it is, Governor. That it is.

A 2010 report by the Congressional Research Service, a branch of the Library of Congress commonly referred to as “Congress’s think tank,” leaves no doubt that the House, and only the House, is its own final arbiter on who wins and who loses in a contested election.

Titled “Procedures for Contested Election Cases in the House of Representatives,” the 19-page analysis lays out the process for challenging an election under the Federal Contested Elections Act.

The report notes that the states have broad authority in deciding how an election is run. It also finds that court decisions surrounding a contested election can be considered by the House as it deliberates the merits, or lack thereof, of an electoral challenge.

But the report also cites a 1972 finding by the U.S. Supreme Court that the Constitution grants members of Congress the power to make “an unconditional and final judgment” in a contested election.

“In short,” the report concludes, “the House has the final say over House contested elections.”

Brewer, the political scientist, said the analysis by the Congressional Research Service “is pretty much spot on.”

In deciding a contested election, he said, Congress “can consider a court ruling, whether it be a Supreme Court ruling or a lower federal court or a state court. They could consider all kinds of things. But at the end of the day, they decide.”

That brings us back to the ranked-choice count, which began Friday and is expected to last at least until midweek.

Poliquin emerged from Election Day with roughly a 2,000-vote lead over Golden but fell about four points short of the 50-percent-plus-one threshold needed to win outright under the ranked-choice system.

Thus, the count now turns to independents Tiffany Bond of Portland and William Hoar of Southwest Harbor.

Starting with Hoar, who finished last, the second choices selected on his ballots will be assigned to the respective candidates. If that’s not enough to put someone over the top, second-choice selections by Bond’s supporters will be added to either Golden’s or Poliquin’s totals.

All told, some 24,000 Mainers selected Bond or Hoar as their first choice. And, based on exit polling conducted on Election Day by Fair Vote, professors at Colby College and the Bangor Daily News, 90 percent of those voters who ranked the candidates named Golden as their second choice.

Assuming the polling is correct, that will leave Golden with more than enough add-on votes to send Poliquin packing and, at the same time, set off a chain reaction of Republican heads exploding.

Poliquin has yet to say whether he’ll contest a ranked-choice loss in court. On Saturday, his campaign noted on Facebook that “there are ongoing concerns” about ranked-choice voting and that the process “allows people multiple votes.”

No surprise there. But before he decides to contest the election, Poliquin would do well first to take a deep breath and survey the obstacles.

As the Lewiston Sun Journal’s Steve Collins reported Thursday, challenges to ranked-choice voting have already failed not only at the federal appellate level, but also in state courts in Minnesota and Massachusetts.

And while Poliquin might relish the drama of a full-blown fight in the House, the fact that likely House Speaker Nancy Pelosi will be holding the gavel in a chamber dominated by Democrats leaves no doubt whatsoever about the eventual outcome.

Better for Poliquin, as his tenure in Congress slips from his grasp, to consider the words he penned last March in an op-ed for the Bangor Daily News:

“Today, some liberal public officials feel that our Constitution is an old-fashioned document no longer reflecting the values of our nation and citizens. At times, they use this excuse, aided by the courts, to interpret the Constitution in a way that bends the law to advance their political agendas. This is wrong and should be exposed and stopped at every turn.”

Lofty rhetoric indeed. But Article 1, Section 5 of that Constitution is crystal clear. It needs no interpretation.

And Mainers didn’t “bend the law” when they voted not once, but twice, in favor of ranked-choice voting. They simply chose it as a better way to express the will of the people.

Poliquin, in that op-ed, also promised to “diligently support and defend the Constitution of the United States.”

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